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Take Care With Executive Session Procedures

Executive session is the name given to the portion of a city or town council meeting that is closed to the public. Although the SC Freedom of Information Act generally requires meetings to be open to the public, several exceptions exist to allow for confidentiality that promotes the overall public good.

Councils should use executive sessions only when necessary, and in accordance with the exceptions listed in SC Code Section 30-4-70:

  1. Discussion of employment, appointment, compensation, promotion, demotion, discipline or release of an employee, or an appointment to a public body. There is no requirement to name the person or entity being discussed.
  2. Discussion of negotiations incident to proposed contractual arrangements, discussions of a proposed sale or purchase of property, receipt of legal advice, settlement of legal claims or discussions of the public agency's position in adversary situations. In the 2015 South Carolina Supreme Court case Donohue v. City of North Augusta, the court ruled that announcing that a "proposed contractual matter" was the basis for executive session was insufficiently specific.
  3. Discussion regarding the development of security personnel or devices.
  4. Investigative proceedings or allegations of criminal misconduct.
  5. Discussion of matters concerning the proposed location, expansion or provision of services encouraging location or expansion of industries or other businesses in the area served by the public body.

Entering into executive session
Before going into executive session, the council must vote, in open session, to enter executive session and state the specific purpose and open meeting exception for the closed door meeting. Councils must be as specific as possible without compromising the issue.

The motion to enter executive session should be specific. For example, the presiding officer can announce a specific purpose "to go into executive session to discuss applications for employment within [a specific department]" or "to discuss negotiation of a contract and receipt of legal advice related to a building project."

Avoiding action during executive session
Votes and informal polling of members may not take place in an executive session. The only action that can be taken in an executive session is to adjourn or return to public session. As noted in SC Code Section 30-4-70(b), councilmembers "may not commit the public body to a course of action by a polling of members during executive session." SC Code Section 30-4-70(c) specifically states that "no chance meeting, social meeting, or electronic communication may be used in circumvention of the spirit of requirements of" the SC Freedom of Information Act.

Consequences of misusing executive sessions
Misuse of executive session is a violation of state law and can result in injunctive relief, civil fines, awards of attorney's fees and invalidation of official actions related to the violation. Misuse can come in several forms, such as an executive session without properly advertising the meeting, or taking a vote to enter executive session. Also, voting on an item in executive session is a misuse of the process. Beyond the legal consequences, improper use or overuse of executive session can greatly erode public trust in government. If residents see their councilmembers frequently entering into executive session, they are likely to assume that their elected officials are aiming to hide their actions.

The Freedom of Information Act in SC is one of the topics for the May 19 session of the Municipal Elected Officials Institute of Government, and is also one of the on-demand courses offered online.